IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4479 of 2008()
1. ASHARAF, S/O.VENTHATTEL KUNJU MUHAMMED,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY PUBLIC
... Respondent
For Petitioner :SRI.P.SANTHOSH (PODUVAL)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :27/11/2008
O R D E R
R. BASANT, J.
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Crl.M.C.No. 4479 of 2008
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Dated this the 27th day of November, 2008
O R D E R
The petitioner, as the 8th accused, faces indictment in
S.C.No. 82 of 1999 before the Addl. Sessions Judge, Fast
Track-II, Trichur. He was not available when the trial
commenced. Out of the nine accused who faced trial, six were
available and three, including the petitioner, was not available for
trial. The learned Judge, after conclusion of the trial, found all
the accused who were available for trial not guilty of the offences
alleged against them and acquitted them. The case against the
petitioner has been split up and refiled. The petitioner now has
to face the trial. The offence alleged against all the accused is
only the one punishable under Section 395 I.P.C.
2. The learned counsel for the petitioner submits that the
petitioner is entitled for acquittal notwithstanding the dictum in
Moosa v. S.I. of Police (2006 (1) KLT 552). The counsel
relies on two circumstances. He first of all contends that at any
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rate there is no specific allegation raised against the petitioner that he
had taken part in the incident proper. At worst, the allegation against
him is only that the miscreants came to the scene of the crime and
went away from the scene of the crime in his vehicle. There is no
precise overt act alleged against him. In these circumstances the
petitioner does not deserve to stand trial, the co-accused having already
been acquitted.
3. Secondly it is contended that an offence under Section 395
I.P.C. is attracted only if five or more persons jointly cause hurt in
committing dacoity. Consequent to the acquittal of six of the nine
accused persons, there cannot be a surviving allegation that the
petitioner is vicariously liable for the offence of dacoity under Section
395 I.P.C.
4. The learned Prosecutor was directed to take instructions. The
learned Prosecutor accepts that no appeal has been preferred against
the judgment of acquittal. He further concedes that the State has no
case that any one other than the nine persons who faced indictment was
responsible for the commission of the offence. The learned Prosecutor
further submits that according to the prosecution the petitioner/A8 has
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3
not committed any overt act at the scene of the crime. Except that the
other miscreants came to the scene and went away from the scene in
his vehicle, there are no other allegations against the petitioner.
5. Having considered all the relevant circumstances, I am
satisfied that in the facts and circumstances of this case, this case can
be construed as an exception to the rule propounded in the decision of
the Full Bench in Moosa (supra).
6. In the absence of opposition from the learned Prosecutor, it is
not necessary for me to advert to facts in any greater detail. I am
satisfied that continuance of the prosecution against the petitioner is
unnecessary and would certainly be non-productive.
7. This Crl.M.C. is allowed. All further proceedings in
pursuance of the final report in Crime No. 80 of 1998 of
Kunnamkulam police station re-filed as S,.C.502 of 2003 in so far as it
relates to the petitioner is hereby quashed.
(R. BASANT)
Judge
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